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Vicky Lynne Kelly v. Michael J. Astrue

August 20, 2012

VICKY LYNNE KELLY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS THAT THE ALJ'S DECISION BE REVERSED AND THE CASE BE REMANDED OBJECTIONS DUE: 10 DAYS (Doc. 1)

BACKGROUND

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying her application for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") pursuant to Title II and XVI, respectively, of the Social Security Act (the "Act"). 42 U.S.C. §§ 405(g); 1383(c). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.

FACTUAL BACKGROUND

Plaintiff was born in 1958, has a high school education, and previously worked as a secretary. (Administrative Record ("AR") 43, 46.) On November 9, 2007, Plaintiff filed an application for DIB and SSI, alleging disability beginning February 2, 2002, due to pain in her neck, shoulders, back, and right arm. (AR 34, 36.) Plaintiff's insured status expired on December 31, 2007. (AR 17) (noting that Plaintiff's earning records indicate that she has acquired sufficient quarters of coverage to remain insured through December 31, 2007).) Thus, for Plaintiff to be eligible for DIB payments, she must prove that she was disabled on or before December 31, 2007. Plaintiff was eligible for SSI the month after her application was filed. 20 C.F.R. § 416.335.

A. Medical Evidence

Plaintiff worked as a secretary from May 1995 to February 2002. (AR 127.) Her job involved bending her head with repetitive movements of her right hand, such as writing and computer work. (AR 461.) In August 2000, while at work she experienced sudden severe pain from her neck shooting down to her right arm. (AR 461, 576.) She was subsequently awarded Workers' Compensation, but reported that the pain persists if she tries to use a computer or use her right hand repetitively for such activities like cooking or writing. (AR 462.) She also experienced lower-back pain prior to her injury at work. (AR 461.)

Plaintiff was treated by Dr. Joseph A. Narloch at the San Ramon Valley Orthopaedic Group in connection with her work injury. (AR 172-89.) In October 2000, Plaintiff underwent an electromyogram ("EMG") test that Dr. Narloch interpreted as showing moderate impingement in the median nerve of the right carpal tunnel ligament without any concomitant evidence of peripheral neuropathy, brachial plexopathy, or cervical radiculopathy in the right upper extremity. (AR 181.) Dr. Narloch also indicated that Plaintiff had mild impingement in the median nerve of the left carpal tunnel ligament. (AR 181.) Plaintiff continued treatment with Dr. Narloch for her carpal tunnel as well as pain in her shoulders. (AR 172-210.)

On November 5, 2002, Plaintiff was referred to Dr. Jackie T. Chan for complaints of severe pain from her shoulder down to her right hand. (AR 582.) Dr. Chan indicated that an EMG study was performed, which showed mild left carpal tunnel syndrome and moderate right carpal tunnel syndrome. (AR 582.) A November 25, 2002, a magnetic resonance imaging ("MRI") scan of Plaintiff's cervical spine showed significant abnormality at the C5-6 level. (AR 581.) The radiological impression was listed as degenerative disc disease at C5-6 with a covered disc herniation to the right causing narrowing of the intervertebral foramen. (AR 581.) On January 29, 2003, Plaintiff underwent an intralaminar epidural injection administered by Dr. Chan. (AR 579.)

On May 1, 2003, Chiropractor Michael J. McClanahan, D.C., examined Plaintiff for approximately two hours and subsequently completed an extensive Qualified Medical Evaluation on May 15, 2003. (AR 299-307.) Chiropractor McClanahan noted that Plaintiff had been referred to an orthopedic surgeon, Dr. Farr, who found that Plaintiff was positive for bilateral carpal tunnel syndrome. (AR 303.) Chiropractor McClanahan reported Plaintiff's symptoms as intermittent slight right upper back pain, slight medial right elbow pain that radiates to the mid-forearm when performing heavy lifting, firm grasping, or repetitive activities such as typing or writing; slight to moderate right wrist pain when performing repetitive activities such as typing or writing; and occasional minimal lower back pain, non-industrial. (AR 305.) He opined that Plaintiff had a 50 percent loss in her lifting capacity due to her wrist disability and recommended that she perform no activity requiring repetitive writs flexion and extension, such as typing. (AR 305.)

On May 8, 2003, Plaintiff was again examined by Dr. Chan. (AR 578.) A repeat EMG study was conducted that did not show any abnormalities regarding carpal tunnel syndrome or any significant enervation changes from radiculopathy. (AR 578.) Dr. Chan prescribed Soma and Vicodin and advised that Plaintiff continue to follow up with her primary treating physician. (AR 578.)

On May 17, 2003, Plaintiff underwent a right shoulder MRI scan. (AR 576.) The radiologist provided an impression of thinning and irregular signal in the rotator cuff, from which a small tear could not be excluded. (AR 576.) Plaintiff also appeared to have mild degenerative changes of the acromioclavicular joint. (AR 576.)

On July 14, 2003, Plaintiff was examined by Dr. Chan who indicated that Plaintiff had myofascial neck and upper shoulder pain with right-sided small C5-6 disc herniation and possible right cervical radiculitis. (AR 574.) He also noted that Plaintiff had a history of bilateral carpal tunnel but that a recent repeated EMG study was negative. (AR 574.) Plaintiff was examined by

Dr. Chan on October 16, 2003. (AR 566.) Dr. Chan indicated similar impressions from the July examination, and prescribed Pamelor, Soma, and Vicodin. (AR 566.)

On February 8, 2005, Plaintiff was examined by Dr. Chan; Plaintiff reported that she was having more pain radiating down her right arm. (AR 560.) Dr. Chan recommended trigger point injections. (AR 560.) In December 2005, Plaintiff reported to Dr. Chan at examination that she was still experiencing neck and upper shoulder pain, but stated that Soma and Vicodin were useful. (AR 558.)

Medical records from the Stanislaus Health Service on June 31, 2006, show that Plaintiff was seen for complaints of lower back pain after her six nephews came for a visit. (AR 316.) On December 21, 2006, Plaintiff was examined for complaints of back pain after putting up Christmas lights. (AR 315.)

On January 8, 2007, Plaintiff followed up with Dr. Chan, who noted that Plaintiff had tenderness along the cervical paraspinal muscles, upper trapezius, levator scapular, and periscapular regions. Dr. Chan listed an impression of cervical and upper shoulder strain with myofascial pain, and a history of right C5-C6 disc herniation, and renewed Plaintiff's prescriptions for Vicodin and Soma. (AR 552.)

On May 21, 2007, Plaintiff was examined for lower-back pain, and she reported she had done some heavy yard work. (AR 314.) On June 26, 2007, Plaintiff was examined in connection with complaint of chronic lower back pain that had worsened after a fall from a swing. (AR 313.)

On February 17, 2008, Plaintiff was examined by Dr. Melanie Alarcio. (AR 461-65.) Plaintiff's chief complaints at that time included chronic back pain as well as right arm, shoulder, and neck pain. (AR 461.) On examination, Dr. Alarcio found that Plaintiff had a positive Tinel sign*fn1 on the right side, as well as mild thenar atrophy in her right hand when compared to her left hand. (AR 464.) Dr. Alarcio noted that Plaintiff had a positive straight leg raise at 60 degrees, and was also positive in the seated position. (AR 464.) Dr. Alarcio reported that Plaintiff had chronic back pain, which was likely related to degenerative joint disease. (AR 464.) However, as Plaintiff had a positive straight leg raise, Dr. Alarcio also recommended ruling out radiculopathy. (AR 465.) Additionally, Dr. Alarcio noted that Plaintiff had a history of cervical radiculopathy as well as carpal tunnel syndrome on the right upper extremity. (AR 465.) She opined that Plaintiff could be expected to stand and walk for six hours with frequent breaks in an eight-hour workday and could sit about six hours with frequent breaks. (AR 465.) She noted that Plaintiff would require the use of an assistive device with prolonged walking and on uneven terrain because Plaintiff developed severe, debilitating pain with prolonged walking. (AR 465.) Plaintiff could lift and carry only 10 pounds frequently. (AR 465.) She opined that Plaintiff should not bend, stoop, or crouch more than frequently. (AR 465.) Due to Plaintiff's right-sided carpal tunnel syndrome, she would have frequent manipulative limitations on the use of her right hand in reaching, handling, feeling, grasping, or fingering. (AR 465.)

On March 7, 2008, non-examining agency physician Ian Ocrant, M.D., reviewed Plaintiff's medical records and opined that Plaintiff could occasionally lift up to 20 pounds; frequently lift 10 pounds; stand and/or walk with normal breaks about six hours in an eight-hour day; sit with normal breaks for a total of six hours in and eight-hour day; and had a limited ability to push and pull. (AR 467.) Dr. Ocrant indicated that Plaintiff could only occasionally climb, balance, stoop, kneel, crouch, and crawl. (AR 468.) He also opined that Plaintiff was limited in her right upper extremities to frequent basic light manipulative activities, and only occasional bilateral overhead activities. (AR 468, 472.) On August 4, 2008, Brian Ginsburg, M.D., confirmed Dr. Ocrant's opinion, and stated that Plaintiff retained the ability to perform light work with postural and manipulative limitations. (AR 491.)

A September 2008 x-ray of Plaintiff's left hand indicated that she had degenerative osteoarthritic changes most prominent in the proximal interphalangeal joint space of the second finger without evidence of acute osseous abnormalities. (AR 606.) The x-ray of Plaintiff's right hand showed minimal osteoarthritic changes of the interphalangeal joint spaces without evidence of acute abnormalities. (AR 607.)

B. Agency Proceedings

The Commissioner denied Plaintiff's application initially and again on reconsideration; consequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 53-57, 62-64.) On September 2, 2009, ALJ Sandra K. Rogers held a hearing where Plaintiff testified that she had not worked since 2002. (AR 35.) She reported pain in both hands, indicating that doctors informed her that she has arthritis which is causing stiffness. (AR 35.) She indicated that it was pain in her hands and her back that precluded her from returning to work. (AR 35.)

According to Plaintiff, she lives at home with her partner, two daughters, and her mother. (AR 35.) Her daily routine includes waking up at 7:00 a.m. to take her medication and help her daughter prepare for school. (AR 36.) Once she drives her older daughter to school, she returns home to lie down because the medicine she takes in the morning makes her tired. (AR 36.) At approximately 10:00 a.m. she helps her youngest daughter prepare for afternoon Kindergarten. (AR

37.) Once she drops her youngest daughter at school, she returns home to lie in bed and stretch her feet. (AR 37.) She also picks the children up from school and washes dishes and laundry. (AR 37.) She reported that vacuuming and sweeping "bother her a lot," so she does not perform those tasks very often. (AR 37.) She finds taking a shower difficult because it requires the use of her hands to wash her hair, so she only does that twice a week. (AR 37.) She also cannot hold a blow dryer because her hands and her neck cause her pain. (AR 37.) She experiences constipation from her medications, and it results in pelvic-area pressure. (AR 38.) As treatment for her pain Plaintiff takes medication, soaks in Epsom Salt, and submerges her hands in paraffin wax. (AR 38.) Writing with a pencil causes her pain after approximately five to ten minutes. (AR 39.) Things tend to slip from her hands, and she tries not to reach overhead because it hurts her neck. (AR 39.) Plaintiff can reach with her arms, but it causes pain. (AR 39-40.) She can comfortably lift only about 10 to 15 pounds; she can sit for approximately 20 minutes and then she needs to move and stretch; she can stand for approximately 45 minutes. (AR 40.) Plaintiff testified that she could walk for approximately 10 minutes, but then she needed to lie down and stretch. (AR 41.) Plaintiff reported that her right shoulder blade causes intense, throbbing pain. (AR 42.)

A vocational expert ("VE") also testified, and characterized Plaintiff's past work as a secretary. (AR 43-45.) The ALJ asked the VE to assume a person of the same age, education and work experience as Plaintiff who could stand six hours a day or sit six hours a day; could lift and carry 10 pounds frequently and occasionally; could only do occasional bending, stooping and crouching; was able to do no more than frequently reaching, handling, feeling, grasping, and fingering with the right hand, no limitation on the left. (AR 43.) The ALJ questioned the VE whether such a hypothetical person could perform Plaintiff's past relevant work as a secretary. (AR 43.) The VE responded that Plaintiff could not perform her past relevant work because it would require constant use of both upper extremities. (AR 44.) The ALJ asked the VE whether ...


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